Guns

The Second Amendment Doesn't Protect Cell Phones

Surprising, but true!

|The Volokh Conspiracy |

In last week's decision by Judge Kenneth D. Bell in Benzing v. N.C. (W.D.N.C.):

On January 27, 2014, Plaintiff Charles Benzing was sentenced to thirty-six months of supervised probation in Wake County Superior Court in North Carolina as a result of criminal contempt violations related to his conduct in connection with domestic disputes….

The Mecklenburg County probation office in Charlotte prohibits the use of cell phones in the office. At all relevant times, the probation office had signage posted stating, "Please turn off cell phones before entering. Thank you." Further, Benzing was instructed on several occasions by Defendants Lockridge, Sweatt and Treadway that video and audio recordings were prohibited at the probation office and that he would need to turn off his cell phone upon entering the office due to security and confidentiality reasons.

On July 29, 2015, Benzing was in the lobby of the probation office recording with his cell phone and was asked to stop recording. Benzing refused to stop recording and began yelling and screaming that he had the right to use his cell phone to record in the office. As a result, Benzing was taken into custody for failure to report in a reasonable manner and for the failure to turn off his cellphone as requested….

Plaintiff bases his claim under the Second Amendment on his contention that his cell phone is a weapon which he contends is an "arm" for purposes of the Second Amendment because he uses its recording capability to "defend" himself. The Supreme Court has defined the "arms" protected by the Second Amendment as "weapons of offence, or armour of defence" or "anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." District of Columbia v. Heller, 554 U.S. 570, 581 (2008). Heller defined the term "to keep arms" to mean "to have weapons" and "to bear arms" as to "carr[y] weapons." Id. at 582. Based on the Court's definition of "arms," the Plaintiff has failed to show that his right to use and keep his cell phone qualifies as an "arm" protected under the Second Amendment because even though a cell phone can be used to summon help or record a crime it is not a "weapon" of either offense or defense. Indeed, Plaintiff has not cited, nor has the Court found, any authority to support Plaintiff's argument that a cell phone can qualify as a weapon under the Second Amendment.

The plaintiff's First Amendment argument was more plausible, but he still lost, given the government's greater power to restrict First Amendment activities inside government buildings:

Plaintiff claims that the requirement by Defendant Lockridge to turn off his cell phone while attending his meetings in the probation office is a violation of his First Amendment right to free speech…. [But] courts have upheld restrictions on the use of cell phones in government buildings. See Hodge v. Bd. of Cty. Comm'rs, No. CIV.A. RWT-10-2396, 2010 WL 4068793 (D. Md. Oct. 15, 2010), aff'd, 414 F. App'x 567 (4th Cir. 2011) ("[t]his court takes notice that cell phones can be used to photograph and/or record closed or sensitive proceedings for unlawful purposes, and prohibition of cell phones in courts and public buildings is a common precaution…. there is no First Amendment 'right to communication" that guarantees a right to carry cellular phones in government buildings."); Sheets v. City of Punta Gorda, Fla., 415 F. Supp. 3d 1115 (M.D. Fla. 2019) (citizen failed to demonstrate that city ordinance, which precluded video and sound recording without consent in city hall and city hall annex, limited public forums, was unreasonable restriction on speech in violation of the First Amendment); Rouzan v. Dorta, No. EDCV 12-1361-BRO JPR, 2014 WL 1716094 (C.D. Cal. Mar. 12, 2014), report and recommendation adopted, No. EDCV 12-1361-BRO JPR, 2014 WL 1725783 (C.D. Cal. May 1, 2014) (holding that defendant did not have a First Amendment right to record officials in a courthouse walkway, noting the absence of a right to record more important judicial proceedings and distinguishing the restriction from a First Amendment right to record police officers carrying out their duties in a public place). Indeed, this Court restricts the possession and usage of cell phones in the courthouse.

Accordingly, the Court declines to find that Plaintiff had an absolute First Amendment right to carry and use a cell phone in the Mecklenburg County probation office. {The broader issue of the full scope of First Amendment's protection for the recording of the conduct of police and other officials in a public place is not before the Court and the Court need not and does not express any opinion on that issue.} The state's "viewpoint neutral" and generally applicable restriction on the use of cell phones in the probation office did not limit Plaintiff's right to speak and was "reasonable in light of the purpose served by the forum." Therefore, Defendants did not violate Plaintiff's First Amendment rights in enforcing the challenged restriction on cell phones.

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  1. What seems like a ridiculous and mercenary Second Amendment argument today, might become the law thirty or forty years hence. I’m old enough to remember.

    1. Lot’s of people get shot by the police for carrying phones, but it’s still one of the more effective things you can have in your hand when dealing with the cops. So I can see the logic…

      1. No more illogical than erasing the first half of the Amendment. It provides for militias, which in our day and age is like providing for trebuchets.

        1. But the first half and the second half are separate. The one does not limit the other.

          1. They could have been neatly linked to arrive at the preferred liberal interpretation simply by inserting the words “for the common defence” after the words “bear arms.”

            Alas, such an insertion was proposed in the Senate, but was defeated.

            1. The Senate??

              Oh, I get it . . . you’re being sarcastic.

              1. Perhaps a quick check on the procedures for proposing constitutional amendments would save embarrassment.

        2. Alright, let’s settle this:

          The first half reads “A well regulated militia being necessary for a free state …”

          The operative word is “being.” Elsewhere in the constitution, the framers used the word “shall” to give a directive, “shall not be infringed”. “Being” isn’t a directive, it is a statement. In other words, a well regulated militia is necessary for the security of a free state.

          Note, the word “if” isn’t being used either. It is not, if a well regulated militia is necessary for the security of a free state … it is saying it is.

          “The right to keep and bear arms shall not be infringed.” There is no conjunction connecting the two statements other than the word “being.” As noted earlier, “being” is a statement of fact, not a qualifier.

          And it is important to understand what exactly a militia was. Well regulated does not mean regulated in the modern sense, it means trained. The collective of people trained and who owned firearms forms the militia, there is no requirement to declare yourself part of the “militia.” You are if you own and carry guns.

          I support some gun control policies, but let’s be honest about what that phrase means. I’m pretty sure if the first amendment read “Freedom of speech being necessary for a free state, Congress shall make no law …” we wouldn’t be making arguments along the same lines.

          1. A better alternate for your First Amendment would be “A well-informed public being necessary for a free state, …”.

            1. That strikes me as too broad. A more apt analogy would be “a free press being fundamental to preserving democracy, the right of the people to freedom of speech shall not be abridged.”

          2. This is one of only two places in the Constitution where the purpose of a provision is explained. (The other is the Patents Clause.) And of course one construes a provision so as to give effect to all of its words. No “surplusage”.

            In the 2A “the people” means “the militia”. It presupposes an armed citizenry that is “well regulated” to defend “the security of a free State”. Note that this was only a couple of years after Shays’s Rebellion; its purpose was to allow States to effectively quell such disturbances. It has nothing to do with individual self-defense; it was put in to keep the federal government from impeding the state militias.

            In the early years we had occasional temporary armies. But militias were the general manner this country defended itself. Finally after the British cleaned their clocks in the War of 1812, we developed a standing army and militias became obsolete except at the state level, and there they were replaced by the National Guard after the Spanish American War.

            1. “In the 2A “the people” means “the militia”. ”

              You’ve got that precisely backwards: The people are the militia. That’s the reason a well regulated militia, rather than army, is necessary to the security of a free state: The militia, being as coextensive with the people as possible, cannot be used to oppress the people because they ARE the people.

              As soon as you separate the people and the militia, you’ve recreated a standing army, which can be used to oppress the people because it’s distinct from them.

              Nonetheless, it is the militia who are to be well regulated, and the people who have the right to be armed. So that right isn’t limited to their role in the militia. It can’t be, or the purpose of the 2nd amendment could be defeated by just not having a militia.

              1. So you’re on the side of Shays.

                1. Why did the Shays lose? Because they weren’t the people, they were just some of them. If they’d been the people, they would have won.

              2. cptcrisis: “it [the 2A] has nothing to do with individual self-defense”

                Are we forgetting how next to no households at the time of the Constitution were unarmed? Wasn’t self-defense already a natural rights assumption, and, hence, didn’t need specific enumeration after declaring the right to bear arms? Are there any historical hints that gun ownership and self-defense were already controversial issues and not universally supported by the C. framers and the vast majority of citizens?

              3. “The people are the militia.”

                Well, not the women. Or the slaves. Or white men under or above a certain age…So, actually, a minority of the people. Seems strange to get a general right of armed self defense from that…

                (BTW-I think a general right of armed self defense is constitutionally warranted, but not from the 2nd Amendment , rather if anything is a substantive due process right rooted in our nation’s history and traditions then the right to armed self defense is one).

                1. Rights have been in the past, and are frequently today, possessed by a minority of the people. That women didn’t have a federal vote until the 19th Amendment didn’t make them any less citizens, they had some rights, but not others. Likewise, certain obligations, like the draft, fall only on men.

                  Saying that the militia, composed of the people, doesn’t encompass all people, is hardly the dig you think it is.

                  Frankly, the better argument is that the “the People” in the 1st and 4th amendment (and 9th and 10th) apply only to individuals, because there is not communal ability to, say, be secure in your papers and effects. Therefore, “the People” in the 2nd Amendment applies to individuals as well.

                2. “under or above a certain age”

                  That’s what the statue says, but practice can differ. Samuel Whittemore was 78 when he participated in Lexington/Concord:

                  “Whittemore was in his fields when he spotted an approaching British relief brigade under Earl Percy, sent to assist the retreat. Whittemore loaded his musket and ambushed the British Grenadiers of the 47th Regiment of Foot from behind a nearby stone wall, killing one soldier. He then drew his dueling pistols, killed a second grenadier and mortally wounded a third. By the time Whittemore had fired his third shot, a British detachment had reached his position; Whittemore drew his sword and attacked. He was subsequently shot in the face, bayoneted numerous times, and left for dead in a pool of blood. He was found by colonial forces, trying to load his musket to resume the fight. He was taken to Dr. Cotton Tufts of Medford, who perceived no hope for his survival. However, Whittemore recovered and lived another 18 years until dying of natural causes at the age of 96.”

                  (and not the militia, and not lawful, but my father enlisted in the Navy at age 15, shortly after Pearl Harbor)

                  1. “…my father enlisted in the Navy at age 15, shortly after Pearl Harbor)”

                    I think that used to be more common. My grandfather enlisted in the Navy during WWII at 16, lying on his paperwork. By the time they caught it, he was 17, and his mother gave permission and he was allowed to stay.

                    1. “I think that used to be more common.”

                      I’ve read a number of biographies of people who did so. I think that people in general grew up a little faster then, and in a practical sense there just weren’t computer databases and so on, so a lie was harder to disprove. And, right after Pearl Harbor, recruiters might be willing to look the other way.

                    2. Yes, definitely.

            2. “Note that this was only a couple of years after Shays’s Rebellion; its purpose was to allow States to effectively quell such disturbances.”

              It wasn’t all that long after another, somewhat larger and more successful, rebellion. One that many of the drafters had a role in.

              “So you’re on the side of Shays.”

              Alternatively, on the side of the minutemen.

              1. That latter is what you have to keep in mind. The founders were involved in the militia movement that preceded our war of independence. The militias formed the nucleus of Washington’s army. The same people who were working with the pre war militias were the same people who wrote the Declaration of Independence (at a minimum Jefferson and Adams, while they were still close friends) and the 2nd Amdt.

                The idea that they intended to eliminate the sort of informal militias that made winning the Revolutionary War with government militias, thus obviating the need for a general right to keep and bear arms is intentional misreading and rewriting of history. Instead, one of the purposes of the 2nd Amdt has always been to provide an armed civilian response to a tyrannical government.

                I should note that the idea that the 2nd Amdt is a communal right was completely debunked by the Heller and McDonald cases, citing, with approval, the research of our noble leader here, EV.

                1. The idea that the framers wanted to ensure that the government they were setting up could be overthrown, is nuts.

                  And no, the communal right view was not “debunked” by Heller and McDonald, any more than equality of the races was “debunked” by Dred Scott.

                  1. “The idea that the framers wanted to ensure that the government they were setting up could be overthrown, is nuts.”

                    Let me let Alexander Hamilton explain why you’re wrong:

                    Federalist 28:
                    If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

                    1. The essay is called, “Right of Revolution”, and Hamilton was talking about the legality of revolution in general — as in, to overthrow the entire government. He certainly was not talking about the Second Amendment.

                      Hamilton did a lot of writing about the 2A elsewhere, and emphasized that militias must be small and well-regulated.

                    2. The Second amendment was about making sure that the right to revolution would be coupled with the means, as much as it was about making sure the government itself could raise a militia from an already armed and proficient population.

                      And, yes, “well regulated”, but “well regulated” didn’t mean “under the heel of bureaucrats” back then. It meant well trained and equipped, “made regular”.

                    3. He wasn’t talking about the 2nd Amendment, only that citizens “should rush tumultuously to arms.” Unless the right to keep and bear arms was protected, where would they get those arms?

                      You’re not taking anything except what you already believe seriously.

                2. Debunked by Heller? It was never bunked to debunk. The idea of the 2nd amendment as a collective right was a motivated fantasy, a fad in the legal community among people who desperately wanted gun control to not be unconstitutional. It didn’t appear until their was a push for federal gun control facing the 2nd amendment as an obstacle.

                  It never made any sense, and people were pointing that out to it’s proponents all along.

                  1. You can go onto Westlaw and find hundreds of citations to U.S. v. Miller, 1939, which held that it was a collective right. One commentator in the 1970’s called it “one of the most settled questions in American law”.

                    1. “which held that it was a collective right.”

                      Have you actually read that decision? I get the impression you haven’t.

                    2. U.S. v. Miller held no such thing. If U.S. v. Miller had held such a thing, it could have been one sentence long: “As Jack Miller is not attempting to vindicate a collective right, he has no standing to bring a challenge under the 2A.”

                      Miller, however, turned on the type of weapon at issue, not on who was asserting the right.

        3. Right, because the Constitution grants rights to government everywhere else too.

          Why do you idiots keep trotting out this ridiculous excuse that somehow the Second Amendment, alone among everything else in the Constitution and all the other amendments, grants rights to the government in the name of the people?

        4. The Second does no such thing. It mentions the militia, which is an entirely different thing from “providing for”.

  2. So unless my math is off, this guy went to prison for more than a year for not putting his phone away. (The judgment doesn’t say, but let’s assume that when he was sent back to prison he served out the remainder of his sentence in full.)

    Isn’t that a tad excessive?

    1. Every government law carries with it the potential of death as the ultimate enforcement. Here he refused to abide by the terms of his probation. What would you propose instead, some other sentence that he would refuse to abide by? A sternly worded letter?

      If the result was excessive, then that speaks to the original verdict and sentence, not failure to abide by it.

    2. Compared to the guy in Mississippi who got 12 years for having his cell phone in a county jail, it doesn’t seem too bad I suppose.

      https://www.wdam.com/2020/01/11/miss-supreme-court-upholds-year-sentence-man-convicted-having-cellphone-jail/

    3. Isn’t that a tad excessive?

      Some legal advice from Chris Rock :

      https://www.youtube.com/watch?v=uj0mtxXEGE8

    4. I’m not sure what the basis for your math is, but it does indeed appear to be off: according to the complaint, the guy was in jail for approximately 16 hours. He was not “sent back to prison” at all after being found in violation.

      1. You’re right, I misread. I thought he was on probation from an original prison sentence of 36 months.

  3. The issue I’ve always had is that if the government has a right to a recording to use against you — in an era of digital editing – why can’t you have your recording to defend yourself.

    1. You can, just not in certain government buildings, where the risks to other people’s privacy have been determined to outweigh your right to record the government.

      1. That seems like where the right should be strongest, to record the public’s employees doing the public’s business. No private citizen has or should have a privicy interest.

    2. Indeed you should, but not under the 2nd amendment. I’d have grounded it in the 5th. I’d have said there’s no general right to make recordings in a police station, but there is if you are being questioned or are otherwise in jeopardy of being charged with a crime.

  4. So much for “the pen is mightier than the sword.”

    All facetiousness aside, it could be argued that modern times have reinforced that adage. Cell phones have been far more effective weapons against things like police brutality than guns and such ever were.

  5. Soon, if not already, we will have wearable devices that can make a digital record of their surroundings and won’t be obviously detectable. Suppose this guy had one of those.

  6. I’m sure I’ve seen James Bond (or one of his his opponents) set off a bomb with signals sent from their phones. Which would seem to make the phone a sort of detonator. That seems a little weapony, albeit only part of a weapon.

  7. Where on earth did he find a lawyer to present that particular argument? Seems like there might have been arguments that would have actually had a chance of prevailing. For example, isn’t there case law that says that government officials in the performance of their duties don’t have a right to privacy when it comes to recording them?

    There are lots of recording devices on the market, by the way, that look like pens and such. Start the recording, slip it into a shirt pocket, and you are not only getting video and audio, but you aren’t violating their restriction on cell phones anyway.

    1. He didn’t have a lawyer.

  8. Looks like a weapon to me.
    ……..
    Yahya Ayyash

    1996: The Israeli secret service finds that a cell phone can be used for things other than chatting with friends. It also makes a pretty nifty little bomb for disposing of an enemy, which is what happens to Yahya Ayyash on Jan. 5, 1996 when he tries talking on a booby-trapped phone apparently provided by Israel’s Shabak.

    https://www.wired.com/2007/01/introducing-the-cell-phone-bomb/

  9. I’d say the 2nd amendment argument is a nonstarter, bur he should prevail on the the basis that the government has no valid interest in prohibiting recording in such places, particularly when interacting with a citizen.

    The government merely wants to prevent you from proving when they’re lying about something they said or did.

  10. I have no problem with the govt forbidding (and therefore, punishing) someone recording in the common areas of this building…other people who have to be there might have their own privacy interests.

    But I see no plausible justification for forbidding audio or video recording, once I am called in for my appt with my probation officer (social worker, case worker, etc). Not only to document possible wrongful actions they may take, but to provide clarification of their instructions to me, if a question arises later. How on earth can it be impermissible to document what a govt official is ordering me to do, esp when my later failure to perform as ordered can lead to significant penalties, and esp when no one else is around? I’m not seeing the policy reasons for this–as long as the person is letting the govt worker know that there is a recording.

    1. I tend to agree that allowing recording is the better policy. I’m more dubious that such a policy is required by the first amendment.

      1. At least at the federal level, it ought to fail on the basis of the N&P clause, since it’s clearly improper for the exercise of any delegated power. But these days they treat the N&P clause as more of a C&E,W clause. (Convenient, and, Eh, Whatever.)

  11. Whereas on one level claiming a cell phone is protected by the 2A is an “arm” because it was used to “defend himself” makes little sense, we also know by recent experience that all it takes is the appropriate legalese, some nattering protesters, and a sympathetic SCOTUS and words that have one meaning will cease to have that meaning and can instead have what meaning the Court decides on the spot.

    The fellow made a bold argument, just a bit ahead of its time I suspect.

  12. Contra Professor Volokh, I would say that the question depends on whether the phone would be suitable for use in a state militia. You know, like the short-barrelled shotgun in DC. v. Miller.

    (“You must know,” said the Judge, but the Snark exclaimed: “Fudge!
    That statute is obsolete quite!
    Let me tell you, my friends, the whole question depends
    On an ancient manorial right.”

    –THE HUNTING OF THE SNARK

    https://www.youtube.com/watch?v=HaIHj_WMEho
    )

    1. Boojums enjoy broad Constitutional rights here in the USA, according to The View on ABC and, perhaps SCOTUS, unless they’re of the wrong party or ideal and then considered dangerous animals to the cause.

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